THOMAS NOONS AND PHILIP NOONS, PETITIONERS V. UNITED STATES OF
AMERICA
No. 89-430
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit
Brief For The United States In Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-12a) is reported
at 878 F.2d 153. The district court's order (Pet. App. 15a) is
unreported.
JURISDICTION
The judgment of the court of appeals was entered on June 14, 1989.
A petition for rehearing was denied on July 12, 1989. Pet. App. 13a.
The petition for a writ of certiorari was filed on September 11, 1989
(a Monday). The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTION PRESENTED
Whether the court of appeals properly issued a writ of mandamus to
vacate the district court's order that compelled a government witness
to submit to a sealed ex parte deposition by defense counsel before
trial.
STATEMENT
1. Petitioners were indicted in the Southern District of Texas on
several charges. One count charged petitioners with conspiracy in
violation of 18 U.S.C. 371. The objects of the conspiracy were: (1)
to defraud the United States; (2) to embezzle and misapply assets of
a federally insured savings and loan institution in receivership; and
(3) to make false statements to the Federal Savings and Loan Insurance
Corporation (FSLIC). Petitioners were also charged with embezzling
and misapplying assets of a federally insured savings and loan
institution in receivership, in violation of 18 U.S.C. 657, and making
a false statement to the FSLIC, in violation of 18 U.S.C. 1001. Pet.
App. 2a; Gov't C.A. Pet. 2. /1/
As alleged in the indictment, the FSLIC, as the insurer of
deposits, closed the Mainland Savings Association in April 1986. The
FSLIC acted as receiver for the Houston bank from May 1986 through
August 1988. During that period, petitioner Philip Noons worked as an
asset manager for the FSLIC; Noons had worked for Mainland until the
bank fell into receivership. Pet. App. 2a; Gov't C.A. Pet. 12-13.
The indictment alleged that Philip Noons and his brother,
petitioner Thomas Noons, conspired to defraud the FSLIC, as Mainland's
receiver, by causing it to sell at less than fair market value one of
Mainland's assets to an entity controlled by C. Marshall Rea, an
attorney. /2/ Petitioners secretly gave Rea's firm some of the funds
that were used to purchase that note; Philip Noons misrepresented the
note's value to the FSLIC officials who were responsible for the sale.
From the time of the sale, in March 1988, and through February 1989,
petitioners used Rea as a conduit by which they received some of the
collections on the note. Pet. App. 2a; Gov't C.A. Pet. 14-18. /3/
2. On April 3, 1989, petitioners filed a pretrial motion to dismiss
the indictment or to suppress evidence. Petitioners alleged that Rea
was their attorney and that the government, with Rea's consent, had
recorded conversations between Rea and petitioners. Petitioners
therefore claimed that the recordings and the disclosures to the
government of these conversations amounted to a breach of the
attorney-client privilege and violated the Fifth and Sixth Amendments.
Pet. App. 3a, 56a-60a. The government opposed that motion contending
that the recorded conversations were not privileged because Rea in
fact had not served as petitioners' attorney and because those
conversations "were for the purpose of furthering an intended,
present, or continuing illegality." Id. at 3a; see id. at 61a-67a.
/4/
In the meantime, petitioners filed a motion on April 11, 1989, to
take Rea's deposition "ex parte and under seal for the purpose of
questioning him regarding his relationship with (petitioners), what he
told the government about (petitioners), and 'all matters pertinent to
this case.'" Pet. App. 4a; see id. at 68a-71a. The government
opposed that motion. The government contended that Rule 15 of the
Federal Rules of Criminal Procedure does not authorize discovery
depositions, that petitioners had not suggested that Rea would be
unavailable either for trial or for any pretrial hearings, and that
Rule 15 does not permit ex parte depositions under any circumstances.
Id. at 4a; see id. at 73a-75a.
3. After a hearing, see Pet. App. 16a-28a, the district court on
May 3, 1989, granted petitioners' discovery motion. The court's order
"compelled (Rea) to testify under oath without the government present
for the limited purpose of discovery." Id. at 15a. That order further
provided that "the deposition shall remain sealed until further order
of this court." Ibid. The court later scheduled the deposition for
May 11. Id. at 5a.
Rea filed a motion to quash that order. Pet. App. 85a-90a. After
another hearing, the district court denied the motion on May 10, 1989.
Id. at 51a. The government sought a stay of the court's order in the
court of appeals and filed a petition for a writ of mandamus to vacate
that order. The court of appeals stayed the proceedings pending its
consideration of the government's petition. Id. at 1a-2a.
4. The court of appeals granted the government's petition and
issued a writ of mandamus barring the taking of Rea's sealed ex parte
deposition before trial. Pet. App. 1a-12a. The court first concluded
that the Federal Rules of Criminal Procedure do not authorize such
depositions. Rule 15(a), by its terms, permits depositions to be
taken only so that testimony may be "preserved for use at trial." Fed.
R. Crim. P. 15(a). The court pointed out that "there was no claim,
evidence, or finding that Rea might be unavailable to testify at trial
or at any pretrial hearing." Pet. App. 7a. To the contrary, the
district court "expressly ordered that the deposition was 'for the
limited purpose of discovery,'" a purpose that the court of appeals
held to be impermissible under Rule 15. Id. at 6a-7a. /5/ Turning to
Rule 16, the court similarly held that that Rule "affords no basis for
a discovery deposition" since the Rule "does not mention depositions."
Id. at 6a-7a.
The court of appeals next acknowledged that "in certain limited
circumstances the district court in a criminal case may order
discovery not provided for by statute or the Federal Rules of Criminal
Procedure." Pet. App. 7a. The court, however, distinguished this case
from United States v. Carrigan, 804 F.2d 599 (10th Cir. 1986). In
that case, the Tenth Circuit refused to vacate the district court's
order for the discovery deposition of two government witnesses where
the record supported the trial court's factual finding that the
government had interfered with the witnesses' freedom to talk with
defense counsel. Id. at 604. Here, by contrast, the court of appeals
observed that "there is no allegation, no finding, and no evidence
that the government in any way impeded (petitioners') ability to talk
to Rea." Pet. App. 8a. The court further noted that "there is no
allegation, evidence, or finding that Rea ever did refuse to talk to
(petitioners) or their counsel; rather, there is only the allegation
that he refused to do so unless government counsel was also present.
There is nothing improper about this." Ibid. The court concluded that
"(n)o right of a defendant is violated when a potential witness freely
chooses not to talk," ibid., and thus petitioners were not entitled to
the discovery deposition they sought.
The court of appeals also criticized the district court's
deposition order on procedural grounds. The district court had
ordered the deposition taken ex parte and then sealed. The court of
appeals concluded, however, that "(s)uch a procedure is not only
wholly unauthorized, it is contrary to the most basic presuppositions
of our adversary system of litigation." Pet. App. 9a. /6/
Finally, the court of appeals held that the district court's
deposition order was properly reviewable on a petition for a writ of
mandamus. It recognized the general rule that "discovery and similar
pretrial orders, even erroneous ones, are not reviewable on mandamus,
particularly in a criminal case." Pet. App. 11a. The writ is
available, however, "where, as here, the applicant has no other means
of redress, * * * the circumstances are exceptional, and the applicant
establishes 'a clear and indisputable abuse of discretion or
usurpation of judicial power by the trial court.'" Ibid. (quoting In
re First South Savings Ass'n, 820 F.2d 700, 705-707 (5th Cir. 1987)).
On the record presented, the court of appeals held that review on
mandamus was appropriate. The district court's deposition order, the
court held, was "wholly unauthorized * * * entirely unprecedented and
constitutes a clear and very substantial departure from the
fundamental principles governing criminal pretrial and trial
procedures in federal court." Pet. App. 12a. The court of appeals
further concluded that the district court's order was
so plainly and substantially in excess of its authority, and
so significantly contrary to the established rules and
precedents governing depositions in criminal cases, as to
constitute a clear and indisputable abuse of its more general
discretion to control the incidents of trial and pretrial in
cases before it. * * *
Ibid. The court then found that there was "no available remedy
other than mandamus" to correct the district court's erroneous order.
Ibid. The court of appeals therefore held that this case was "that
most rare and exceptional case where relief by mandamus is appropriate
respecting a criminal case deposition order." Ibid.
ARGUMENT
1. Petitioners contend (Pet. 5-7) that the court of appeals
exceeded its authority by reviewing the district court's interlocutory
discovery order on a petition for a writ of mandamus. This Court has
long held that "(t)he traditional use of the writ in aid of appellate
jurisdiction both at common law and in the federal courts has been to
confine an inferior court to a lawful exercise of its prescribed
jurisdiction or to compel it to exercise its authority when it is its
duty to do so." Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26
(1943); see, e.g., Mallard v. United States District Court, 109 S.
Ct. 1814, 1822 (1989); Kerr v. United States District Court, 426 U.S.
394, 402 (1976); Will v. United States, 389 U.S. 90, 95 (1967).
Furthermore, "(t)o ensure that mandamus remains an extraordinary
remedy," this Court has consistently maintained that applicants "must
show that they lack adequate alternative means to obtain the relief
they seek, * * * and carry the burden of showing that (their) right to
issuance of the writ is clear and indisputable." Mallard, 109 S. Ct.
at 1822 (brackets in original).
The court of appeals correctly concluded that the government
satisfied its burden for obtaining mandamus relief. First, as the
court of appeals recognized, Pet. App. 12a, the government had no
other means to prevent Rea, a cooperating witness, from being
subjected to a sealed ex parte deposition. The deposition order
foreclosed the government's participation in an unauthorized discovery
process and thus threatened to injure the government's own legal
rights as a party -- an otherwise unreviewable pretrial matter. Cf.
United States v. Carrigan, 804 F.2d 599, 601 n.1 (10th Cir. 1986).
Second, the government established that the district court's order was
clearly beyond that court's lawful jurisdiction. As the court of
appeals concluded, the district court's approval of petitioners'
request for a one-sided deposition was "wholly unauthorized" and
constituted "a clear and very substantial departure from the
fundamental principles governing criminal pretrial and trial
procedures in federal court." Pet. App. 12a. Those are precisely the
circumstances that call for the issuance of the extraordinary writ of
mandamus.
2. Nevertheless, petitioners dispute the court of appeals'
treatment of the district court's deposition order and renew their
contention (Pet. 7-11) that Rules 15 and 16 of the Federal Rules of
Criminal Procedure authorize that order in this case. Rule 15(a)
generally authorizes the taking of depositions in criminal cases
"(w)henever due to exceptional circumstances of the case it is in the
interest of justice that the testimony of a prospective witness of a
party be taken and preserved for use at trial * * *." The court of
appeals, in accord with other circuits, see note 5, supra, recognized
that Rule 15(a) "does not authorize depositions for discovery
purposes." Pet. App. 6a. But that was precisely the purpose of the
district court's deposition order -- to "compel() (Rea) to testify
under oath without the government present for the limited purpose of
discovery." Id. at 15a. /7/
The record makes clear that petitioners had not sought to take
Rea's deposition in order to preserve his testimony for use at either
the trial or pretrial hearings. As the court of appeals found, "there
was no claim, evidence, or finding that Rea might be unavailable to
testify at trial or at any pretrial hearing." Id. at 7a. And
petitioners now concede that they sought Rea's deposition in order
either to support their previously filed motion to dismiss the
indictment or to "develop an 'advice of counsel' defense." Pet. 4-5.
Those purposes are plainly beyond the scope of Rule 15(a).
Rule 16 of the Federal Rules of Criminal Procedure imposes
discovery and inspection obligations on parties in criminal cases.
That rule generally calls for production or inspection of photographs,
written or recorded statements, recorded grand jury testimony, a
defendant's criminal record, documents and other tangible objects
material to the preparation of the defense, and reports of physical or
mental examinations and scientific tests or experiments. See Fed. R.
Crim. P. 16(a)(1) and (b)(1). Rule 16 does not refer to depositions,
and it does not even authorize discovery of statements of third-party
prospective government witnesses (apart from certain exceptions not
pertinent to this case, see Fed. R. Crim. P. 16(a)(2)). Accordingly,
Rule 16 "cannot (be) read * * * as providing a basis for the trial
court to order the depositions of adverse witnesses in criminal
prosecutions." United States v. Carrigan, 804 F.2d at 603.
Since the Federal Rules of Criminal Procedure do not authorize the
district court's unprecedented deposition order, and "(t)here is no
general constitutional right to discovery in a criminal case,"
Weatherford v. Bursey, 429 U.S. 545, 559 (1977), the only available
source of authority would be the court's inherent supervisory powers.
See United States v. Hasting, 461 U.S. 499, 505 (1983). Ass this
Court has stated, "(t)he purposes underlying use of the supervisory
powers are threefold: to implement a remedy for violation of
recognized rights * * *; to preserve judicial integrity by ensuring
that a conviction rests on appropriate considerations validly before
the jury * * *; and finally, as a remedy designed to deter illegal
conduct * * *." Ibid. The district court's deposition order served
none of these purposes.
Petitioners suggest (Pet. 8) that a sealed ex parte deposition
would serve the salutary purpose of allowing them to investigate their
claim that Rea, at the government's behest, violated the
attorney-client privilege, without forcing the defense to reveal trial
strategy. That goal, however desirable to the defense, does not
warrant the exercise of supervisory powers to sanction an unauthorized
discovery procedure. The decision whether to speak with petitioners
rests with Rea, not with petitioners. A prospective witness may
legitimately refuse to be interviewed for trial preparation by either
the defense or the government. Consequently, a district court has no
authority to compel an interview against the witness's wishes. See,
e.g., United States v. Pinto, 755 F.2d 150, 152 (10th Cir. 1985);
United States v. Fischel, 686 F.2d 1082, 1091 (5th Cir. 1982); Kines
v. Butterworth, 669 F.2d 6, 9 (1st Cir. 1981), cert. denied, 456 U.S.
980 (1982); Byrnes v. United States, 327 F.2d 825, 832 (9th Cir.),
cert. denied, 377 U.S. 970 (1964). Furthermore, as the court of
appeals determined, Pet. App. 8a, when Rea agreed to be interviewed by
petitioners' counsel only if the prosecutor were present, he acted
without any undue influence by a government representative. In that
situation, the district court may not compromise Rea's independent
decision in order to aid petitioners' gathering of discovery
materials. The court of appeals therefore properly issued the writ of
mandamus in order to prevent the district court from exercising power
beyond its lawful jurisdiction. /8/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
MERVYN HAMBURG
Attorney
NOVEMBER 1989
/1/ Petitioner Philip Noons was charged with two additional counts
of embezzling and misapplying assets of a federally insured savings
and loan institution in receivership, in violation of 18 U.S.C. 657.
Gov't C.A. Pet. 2.
/2/ The asset was a $4 million installment note executed in
December 1982. The note required the debtor to make monthly payments
of approximately $37,000, with an approximate $3.9 million balloon
payment due in January 1993. The debtor assigned the note to Mainland
in December 1984. Pet. App. 2a; Gov't C.A. Pet. 14.
/3/ The additional charges against Philip Noons, see note 1, supra,
involved the sale of another Mainland asset to an entity controlled by
Rea. Gov't C.A. Pet. 19-21.
/4/ That motion remains pending before the district court. Pet.
App. 5a.
/5/ The court noted that other circuits had reached the same
conclusion. See, e.g., United States v. Troutman, 814 F.2d 1428, 1453
(10th Cir. 1987); United States v. Cutler, 806 F.2d 933, 936 (9th
Cir. 1986); United States v. Hutchings, 751 F.2d 230, 236 (8th Cir.
1984), cert. denied, 474 U.S. 829 (1985); United States v. Steele,
685 F.2d 793, 809 (3d Cir.), cert. denied, 459 U.S. 908 (1982).
/6/ The court of appeals rejected petitioners' contention that the
government's alleged prodding of Rea to breach the attorney-client
privilege justified the district court's deposition order. The
appropriate means of addressing that allegation, the court noted, is
through an evidentiary hearing on petitioners' pretrial motion to
dismiss the indictment or to suppress evidence. At that hearing, the
court of appeals stated, petitioners would have the right to compel
Rea's appearance and have him testify. See United States v. Fortna,
796 F.2d 724 (5th Cir. 1986). The court found that "(t)here is no
indication, allegation, or finding that Rea would be unavailable for
such a hearing." Pet. App. 10a.
The court of appeals also rejected petitioners' argument that the
district court's deposition order was necessary in order to preserve
petitioners' claims of attorney-client privilege that would be waived
if petitioners called Rea to testify at a pretrial evidentiary
hearing. The court of appeals remarked that "(w)e are aware of no
authority that would support such a waiver, and neither the district
court nor (petitioners) (here or below) have cited any authority which
assertedly supports it." Pet. App. 10a.
/7/ In their original motion to take the sealed ex parte
deposition, petitioners candidly stated that "(t)he defense wants to
question Rea alone immediately regarding (1) his relationship with
(petitioners), (2) what he told the government about them and (3) all
matters pertinent to this case." Pet. App. 69a.
/8/ Petitioners err in contending (Pet. 11-13) that the court of
appeals' decision conflicts with United States v. Carrigan, 804 F.2d
599 (10th Cir. 1986). In Carrigan, the Tenth Circuit refused to
vacate the district court's order for the discovery deposition of two
government witnesses where the record supported that court's factual
finding that the government had interfered with the witnesses' freedom
to talk with defense counsel. Id. at 604. This case, however, is
readily distinguishable since "there is no allegation, no finding, and
no evidence that the government in any way impeded (petitioners')
ability to talk to Rea." Pet. App. 8a. The court of appeals further
noted that "there is no allegation, evidence, or finding that Rea ever
did refuse to talk to (petitioners); rather, there is only the
allegation that he refused to do so unless government counsel was also
present. There is nothing improper about this." Ibid. The court of
appeals thus properly concluded that "(n)o right of a defendant is
violated when a potential witness freely chooses not to talk." Ibid.
Accordingly, petitioners may not rely on Carrigan as support for the
discovery deposition they sought, particularly where the deposition
ordered in that case, in stark contrast to the procedure approved by
the district court here, expressly directed that the deposition be
taken "in the presence of (the witnesses') attorney and the
government's counsel." 804 F.2d at 601.